Lloyd Smith v. Timothy Vern Simas

¶1 Lloyd and Laurie Smith filed suit against Timothy Vern and

Christy Leigh Simas claiming that the Simases' house, constructed

adjacent to the Smiths' house, violated the Declaration of

Covenants, Conditions, and Restrictions recorded against the

Simases' property. On appeal, the Smiths challenge the trial court's

denial of their requests for injunctive relief, nominal damages, and

attorney fees. The Simases cross-appeal the trial court's denial of

their own request for attorney fees. We conclude that the trial court

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properly exercised its discretion to deny the Smiths' request for

injunctive relief and to determine that neither party had prevailed

below such that attorney fees were recoverable. We affirm.

BACKGROUND

¶2 This case involves the construction of a house in the

Sandstone Cove Subdivision (Sandstone Cove), a residential

development located near Park City, Utah. All lots located within

Sandstone Cove are subject to a Declaration of Covenants,

Conditions, and Restrictions (the CC&Rs) recorded against the real

property. The Smiths purchased an existing home on Lot 15 of

Sandstone Cove. With their purchase, the Smiths received a right

of first refusal on Lot 13, located directly adjacent to their home.

Some time after moving in, the Smiths discovered that an offer to

purchase Lot 13 had been made and that, pursuant to their right of

first refusal, they could purchase Lot 13 for the same amount that

had been offered. After reviewing the CC&Rs and concluding that

any house built on Lot 13 would not impede their view, the Smiths

decided not to exercise their right to purchase the lot.

¶3 Thereafter, the Simases purchased Lot 13 and began

preparations to build a house. The Simases had previously built a

house on Lot 16 of Sandstone Cove. Prior to obtaining a building

permit for Lot 13, the Simases received approval for their project

design from the Sandstone Cove homeowners association (the

HOA). The Simases also submitted their proposed plans for

construction of a house on Lot 13 to the Park City Planning

Commission and Park City building officials. In April 2007, the

Simases obtained a building permit from the Park City Building

Department (the Department). The Simases began construction on

Lot 13 shortly thereafter and began framing the house in June 2007.

¶4 On August 19, 2007, the Smiths submitted a written

complaint to the Department alleging that the Simases' house

exceeded the allowable floor area limit and violated a requirement

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that the top floor of the house be no more than 50% as large as the

level beneath it. The Smiths' complaint to the Department

appeared to be based on restrictions contained in the Sandstone

Cove plat map. Soon thereafter, the Smiths made complaints to the

HOA that the Simases' house violated similar provisions in the

CC&Rs. The president of the HOA replied by letter to the Smiths

on September 15, indicating that the Simases' construction was in

compliance with the CC&Rs.

¶5 On November 7, 2007, the Department issued a stop-work

order on the Simases' construction based on an unrelated finding

that "during construction the Limit of Disturbance (the

'LOD')—the working space allowed around the footprint of the

house during construction—had been exceeded and some of the

surrounding natural vegetation had been disturbed.” In response,

the Simases returned the LOD fence to the appropriate location and

reseeded the damaged area. However, the Park City Chief Building

Official refused to lift the stop-work order, having concluded that

the Simases' house was in violation of a plat note that required the

main level of the house to be no larger than 85% of the basement

floor beneath it (the 85% Rule).

¶6 On December 11, 2007, the Smiths sent another letter to the

HOA asserting that the Simases' house violated eight provisions of

the CC&Rs. The HOA responded by directing its Architectural

Committee and a consultant, the Highland Group, to review the

Simases' architectural plans. On January 11, 2008, the Highland

Group determined that the plans complied with the CC&Rs.

Thereafter, the Smiths sent letters to the Park City Chief Building

Official and other Park City officials alleging that the Simases'

house violated restrictions in the plat map and city code. On April

15, 2008, Park City's interim planning director wrote a letter to the

Smiths addressing their complaints and concluding that the

Simases' house violated the 85% Rule. Park City accordingly

maintained the stop-work order on the Simases' construction. In

response to this determination, the Simases submitted revised

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architectural plans to the Department that utilized a crawl space

underneath the driveway and garage to comply with the 85% Rule.

¶7 On April 29, 2008, after reviewing the revised plans, the

Park City Chief Building Official determined that the Simases'

amended plans satisfied the 85% Rule as set forth in the Sandstone

Cove plat notes, and Park City lifted the stop-work order. The

Smiths appealed to the Park City Planning Commission, which

upheld the decision to lift the stop-work order. On June 24, 2008,

the Smiths filed suit against the Simases, alleging breach of contract

and seeking damages and injunctive relief on the ground that the

Simases' house violated six provisions of the CC&Rs.

¶8 Trial began on July 7, 2010. Both parties submitted proposed

jury instructions and special-verdict forms. The trial court raised

several concerns with the parties' proposed special-verdict forms

and worked with the parties to revise the form to address these

concerns. The form ultimately submitted to the jury required the

jury to determine whether any violation of the CC&Rs was material

before it proceeded to a determination of damages. Both parties

approved this special-verdict form. At the conclusion of the trial,

the jury determined that the Simases breached three provisions of

the CC&Rs: (1) section 6.3, requiring the "major axis and central

mass of the [d]welling [to] be reasonably parallel to the natural

contours of the [l]ot”; (2) section 6.8(e), incorporating the 85% Rule

that required that the main floor of the house not exceed 85% of the

basement floor; and (3) section 6.8(g), providing that "[n]o exterior

wall may exceed 23' in height when measured from the eave

overhang line to the lesser in elevations of either natural grade or

finished grade.” Despite finding these breaches of the CC&Rs, the

jury determined, pursuant to the special-verdict form, that these

breaches were not material. The jury therefore did not reach the

issue of damages.

¶9 The Smiths then filed a posttrial motion seeking injunctive

relief. The Smiths argued that the jury's determination as to

materiality did not preclude the trial court from "issuing an

Smith v. Simas

1. The Smiths alternatively argue that the trial court's equitable

rulings are not supported by adequate findings. However, to

preserve a challenge to the adequacy of a trial court's findings, a

party must first raise that challenge in the trial court to give that

court "an opportunity to correct the alleged error.” In re K.F., 2009

UT 4, ¶¶ 59–61, 201 P.3d 985 (citation and internal quotation marks

omitted). Because the Smiths did not challenge the adequacy of the

trial court's findings below, the Smiths' argument that the trial

court's findings are inadequate is waived. Id. ¶ 60.

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injunction abating such nuisance.” The court instructed the parties

to brief the issues and heard oral arguments, at the conclusion of

which the court ruled that the Smiths "had not proven the factual

or legal basis for entry of injunctive relief.” On August 27, 2010, the

trial court formally issued its Findings of Fact and Conclusions of

Law and Judgment detailing the basis for its denial of the Smiths'

request. The court also denied the Smiths' alternative request for

nominal damages and refused to grant either party an award of

attorney fees. Both parties appeal.

ISSUES AND STANDARDS OF REVIEW

¶10 The Smiths argue that the trial court erred by denying their

request for an injunction ordering the abatement of the violations

of the CC&Rs.1 "The availability of [an equitable] remedy is a legal

conclusion that we review for correctness.” Ockey v. Lehmer, 2008

UT 37, ¶ 42, 189 P.3d 51. However, the trial court's formulation and

application of an equitable remedy is reviewed for an abuse of

discretion. Id. And because "a trial court is in an 'advantaged

position' to consider equities, we give 'considerable deference to

[its] findings and judgment.'” Hone v. Hone, 2004 UT App 241, ¶ 10,

95 P.3d 1221 (alteration in original) (quoting Jacobson v. Jacobson, 557

P.2d 156, 158 (Utah 1976)).

¶11 The Smiths next contend that the special-verdict form

improperly and prematurely cut off the jury's determination of

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damages. Because jury instructions are statements of the law

applicable to a case, we review a trial court's instructions to the

jury for correctness. See State v. Powell, 2007 UT 9, ¶ 11, 154 P.3d

788. However, we conclude that any error in the special-verdict

form was invited, and we are therefore precluded from reviewing

this issue. See Pratt v. Nelson, 2007 UT 41, ¶¶ 16–17, 164 P.3d 366.

¶12 The Smiths also argue that the trial court erred when it

denied their request for nominal damages. Because the Smiths have

not demonstrated that we should depart from the general rule that

we "do not remand if the damages are only nominal,” Holmes Dev.,

LLC v. Cook, 2002 UT 38, ¶ 43, 48 P.3d 895, we do not reach the

merits of this claim.

¶13 Finally, the Smiths challenge the trial court's denial of

attorney fees, arguing that they were entitled to attorney fees as the

prevailing party below. Similarly, on cross-appeal, the Simases

assert that they were the prevailing party below and were therefore

entitled to attorney fees. We review for correctness a trial court's

determination whether a prevailing party may recover its attorney

fees. Hartwig v. Johnsen, 2008 UT 40, ¶ 6, 190 P.3d 1242. However,

"[w]hether a party is the prevailing party in an action is a decision

left to the sound discretion of the trial court,” and we review the

trial court's decision for an abuse of discretion. Carlson Distrib. Co.

v. Salt Lake Brewing Co., 2004 UT App 227, ¶ 16, 95 P.3d 1171.

ANALYSIS

I. The Smiths' Request for an Injunction Ordering Abatement

¶14 The Smiths first argue that the trial court abused its

discretion when, after the jury found that the Simases' house

violated three provisions of the CC&Rs, the trial court denied the

Smiths' request for an injunction ordering the abatement of the

violations. In general, restrictive covenants operate to ensure

uniformity of development and use of a residential subdivision and

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to give the owners of lots within such an area some degree of

certainty as to future development. Because their use is a

concomitant right of property ownership, covenants can be used

for any purpose that is not illegal or against public policy. See

Restatement (Third) of Property (Servitudes) § 1.1 cmt. a (2000). In

addition, "property owners who have purchased land in a

subdivision, subject to a recorded set of covenants and conditions,

have the right to enforce such restrictions through equitable relief

against property owners who do not comply with the stated

restrictions.” Fink v. Miller, 896 P.2d 649, 652 (Utah Ct. App. 1995).

However, "[t]he right to an equitable remedy is an exceptional one,

and absent statutory mandate, equitable relief should be granted

only when a court determines that damages are inadequate and

that equitable relief will result in more perfect and complete

justice.” Hill v. Estate of Allred, 2009 UT 28, ¶ 22, 216 P.3d 929

(citation and internal quotation marks omitted).

¶15 The Smiths argue that once they established that a valid

restrictive covenant applied to the Simases' property and that the

Simases' house violated that covenant, they were entitled to an

injunction to abate the violation of the restrictive covenant.

"Restrictive covenants that run with the land and encumber

subdivision lots form a contract between subdivision property

owners as a whole and individual lot owners . . . .” Swenson v.

Erickson, 2000 UT 16, ¶ 11, 998 P.2d 807. The parties do not dispute

that the CC&Rs create a valid restrictive covenant on the Simases'

property. And the Simases do not challenge the jury's finding that

their house violated three provisions of the CC&Rs. Section 12.1 of

the CC&Rs states that a "violation of the provisions of this

Declaration is deemed to be a nuisance, and the Owner of the

Property on which the violation occurs is responsible for the

removal or abatement of the nuisance.” Section 12.2 states that

"[a]ny single or continuing violation of the covenants contained in

this Declaration may be enjoined in an action brought” by a party

empowered to enforce the CC&Rs. The parties disagree about

whether these provisions of the CC&Rs provide for a mandatory

injunction to abate any violation of the CC&Rs or merely

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permissive relief if monetary damages are inadequate to remedy a

violation.

¶16 We need not determine whether these provisions of the

CC&Rs purport to make an injunction mandatory, because we

conclude that even if the injunction was mandatory under the

CC&Rs, the trial court properly exercised its discretion in refusing

to grant an injunction based on a balancing of the equities. Under

appropriate circumstances, a trial court may elect to "apply a

balancing of equities test instead of issuing a mandatory

injunction.” Carrier v. Lindquist, 2001 UT 105, ¶ 31, 37 P.3d 1112.

Under this test, a trial court has discretion not to grant an

injunction for violation of a restrictive covenant if the violation by

the defendant was innocent, the cost of curing the violation would

be disproportionate to the benefit realized, the injury to the plaintiff

can be adequately compensated with damages, and the violation

does not cause irreparable injury to the plaintiff. Id. Because the

application of this doctrine is "reserved for the innocent

defendant,” the determination whether the defendant's violation

was innocent is a threshold issue. Id. (emphasis omitted) (citation

and internal quotation marks omitted).

A. The Simases' Innocence

¶17 The trial court determined that the Simases' violations of the

CC&Rs were innocent because the Simases "complied with the

proper HOA approval processes, and constructed their home in

reliance on the approvals from this entity.” An innocent defendant

is one who "proceeds without knowledge or warning that he is

encroaching upon another's property rights.” Id. The Smiths

contend that because the Simases were aware that the Smiths had

complained to Park City and the HOA about the Simases

construction, the Simases did not act innocently in constructing

their house in violation of the CC&Rs. However, the Simases'

awareness that the Smiths believed the Simases' house violated the

CC&Rs does not demonstrate that the Simases knew or had

warning that the house actually violated the CC&Rs. As the trial

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court observed, both the HOA and the Park City Planning

Commission approved the initial construction plans for the

Simases' house. In response to the Smiths' initial complaints about

the construction, the HOA determined that the house was in

compliance with the CC&Rs. After receiving additional complaints

from the Smiths, the HOA's architectural committee and a hired

consultant reviewed the plans and confirmed that the Simases'

house would not violate the CC&Rs. The Smiths also submitted

complaints to Park City regarding the Simases' house. Park City's

interim planning director ultimately concluded that the

construction plans violated one of the plat notes, prompting the

Simases to revise their architectural plans to bring the house into

compliance. In sum, the evidence shows that the Simases obtained

approval of their construction plans from the Department, the Park

City Planning Commission, the HOA, the HOA's architectural

committee, and the HOA's independent architect. Every entity that

reviewed the plans ultimately found that the Simases' final house

plans complied with the restrictions on the lot, and testimony at

trial demonstrates that the Simases attempted to comply with the

CC&Rs in good faith. Given these authoritative rejections of the

Smiths' complaints during the planning and construction process,

we are not convinced the trial court abused its discretion in

determining that the Smiths' complaints about the Simases' house

were insufficient to give the Simases "knowledge or warning that

[they were] encroaching upon another's property rights” and that

the Simases' violations were therefore innocent. Id.

B. Disproportionate and Oppressive Cost of Removal

¶18 The trial court concluded that "the cost of now modifying

the [Simases' house] in the manner sought by the [Smiths] is

grossly disproportionate to any benefits that the [Smiths] would

derive from such modifications.” The trial court accepted as

credible the Simases' testimony that modifying the house in the

manner requested by the Smiths would not only cost well over

$100,000 but would "result in essentially destroying the market

value of the home.” The trial court further determined that the

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Smiths' view would not be materially improved by their requested

modification to the Simases' house. The trial court based this

conclusion on trial exhibits and testimony demonstrating that the

Smiths' view was not substantially blocked by the Simases' house

and on an appraisal expert's testimony that "no objectively

discernable difference in fair market value for [the Smiths'] home

would result from the modifications of [the Simases' house].”

Moreover, the trial court determined that the Simases could bring

their house into compliance with the CC&Rs without in any way

improving the Smiths' view. Accordingly, the trial court concluded

that the significant costs of modifying the Simases' house would

greatly outweigh any economic benefit to the Smiths and would

"result in economic waste.” Given the trial court's findings, we

cannot say the trial court abused its discretion in reaching this

conclusion.

C. Compensation with Damages

¶19 The trial court also determined that the harm to the Smiths

could have been compensated with damages had they prevailed on

their legal claim at trial. The Smiths' own expert testified at trial

that damages could be quantified in the amount of $90,000 in lost

property value. While the Smiths ultimately were not awarded any

damages by the jury, that has no bearing on whether damages

could have adequately compensated the Smiths had they prevailed.

And the Smiths' argument that damages were insufficient because

they were irreparably harmed is foreclosed by our analysis of the

trial court's irreparable-harm determination. See infra ¶ 21.

Accordingly, we conclude that the trial court's determination that

damages would have adequately compensated the Smiths was

within its discretion.

D. Irreparable Harm

¶20 The trial court determined that the Smiths "would not suffer

irreparable injury since the [Simases'] violations of the [CC&Rs

were] not material and therefore not substantial.” Generally,

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"[i]rreparable injury justifying an injunction is that which cannot be

adequately compensated in damages or for which damages cannot

be compensable in money.” Carrier, 2001 UT 105, ¶ 26, 37 P.3d 1112.

However, injury that is immaterial or otherwise insubstantial,

nominal, slight, or technical does not constitute irreparable injury

that would justify an injunction. See 43A C.J.S. Injunctions §§ 50, 59

(2004). And injunctive relief is not appropriate where the requested

injunction would be ineffectual. See Penelko, Inc. v. John Price Assocs.,

Inc., 642 P.2d 1229, 1236 (Utah 1982); 43A C.J.S. Injunctions § 89

(2004). Because the diminution in the Smiths' property value was

compensable in damages, the only remaining question is whether

the trial court abused its discretion in concluding that the effect on

the Smiths' view did not constitute an irreparable injury.

¶21 The trial court's determination that the Smiths did not suffer

an irreparable injury relied on numerous trial exhibit photographs

showing that there is a 180-degree view of the Park City Valley

from the Smiths' deck that is not substantially blocked by the

Simases' house; the evidence that even removing a portion of the

Simases' house, as requested by the Smiths, "would not materially

improve the view from [the Smiths'] home”; and the Smiths' own

testimony that despite the location of the Simases' house, they

could "rearrange the furniture in their living room so that they

could avail themselves of a different viewing angle.” The trial court

also relied on testimony from the Simases' appraisal expert that

"no objectively discernible difference in fair market value for [the

Smiths'] home would result from the modifications” that the

Smiths requested and that the typical buyer would not notice a

change to the Smiths' view if the Simases' house was modified. As

the trial court observed, "the breaches of the CC&Rs did not

materially affect the Smiths' view, and . . . the alleged violations do

not irreparably injure—in fact, do not materially injure the

[Smiths].” Given the advantaged position of the trial court to make

findings about the nature of the harm suffered by the Smiths, we

cannot say the trial court abused its discretion in concluding that

the impairment of the Smiths' view by the Simases' house is

immaterial and does not constitute irreparable injury.

Smith v. Simas

2. The trial court also based its decision in part on the Smiths' delay

in enforcing their rights under the CC&Rs. "The doctrine of laches

is based upon [the] maxim that equity aids the vigilant and not

those who slumber on their rights.” Fundamentalist Church of Jesus

Christ of Latter-Day Saints v. Horne, 2012 UT 66, ¶ 29, 289 P.3d 502

(alteration in original) (citation and internal quotation marks

omitted). Laches is appropriately considered as part of the

"broader, equity-based inquiry” undertaken in evaluating

"whether an injunction for restrictive covenant violations or the

like is proper.” Id. ¶ 31. Accordingly, the trial court's determination

that the Smiths unreasonably delayed asserting their rights under

the CC&Rs to the detriment of the Simases—allowing construction

to proceed for over a year after they came to believe the Simases'

house violated the CC&Rs before filing suit—also supports the trial

court's determination that the balance of the equities favored

denying the Smiths' request for an injunction.

3. Jury instruction number 31 directed the jury to "decide whether

there was a material breach of the contract.” It also provided a

(continued...)

20100793-CA 12 2014 UT App 78

¶22 The trial court determined that the Simases had innocently

violated the CC&Rs, that the cost of remedying the violations was

disproportionate to the benefit that would be conferred on the

Smiths, and that the injury to the Smiths is not irreparable and

could have been remedied with an award of damages had the

Smiths prevailed at trial. Because we conclude that the trial court

did not abuse its discretion in balancing the equities, we affirm its

denial of the Smiths' request for an injunction.2

II. The Special-Verdict Form

¶23 Next, the Smiths challenge the special-verdict form

presented to the jury at trial. The trial court presented the jury with

instructions and a special-verdict form requiring the jury to find

that the violations of the CC&Rs were "material” before

determining damages.3 The jury determined that although the

Smith v. Simas

3. (...continued)

definition of "material” that mirrors the definition provided on the

special-verdict form, which states, "A breach is 'material' if a party

fails to perform an obligation that was important to fulfilling the

purpose of the contract. A breach is not material if the party's

failure was minor and could be fixed without difficulty, or if it did

not materially affect the Smith[s'] view.”

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Simases' house violated the CC&Rs, those violations were not

material. Thus, the jury did not award any damages to the Smiths.

The Smiths argue that the trial court should have instructed the

jury to determine an award of damages because the issue of

whether the Simases' breach of the CC&Rs was material is not an

element that a party must prove in order to recover monetary

damages for breach of a covenant.

¶24 We do not reach the issue of whether the trial court correctly

instructed the jury as to the materiality requirement because any

error in the special-verdict form was invited by the Smiths. "The

invited error doctrine prevents a party from taking advantage of an

error committed at trial when that party led the trial court into

committing the error.” Tschaggeny v. Milbank Ins. Co., 2007 UT 37,

¶ 12, 163 P.3d 615 (citation and internal quotation marks omitted).

"Affirmative representations that a party has no objection to the

proceedings fall within the scope of the invited error doctrine

because such representations reassure the trial court and encourage

it to proceed without further consideration of the issues.” Id.

(citation and internal quotation marks omitted).

¶25 At the close of trial, before the jury was instructed, the

parties were given an opportunity to review the special-verdict

form that the trial court intended to give to the jury. When the trial

court asked counsel for the Smiths if the Smiths had any objection

to the proposed special-verdict form, counsel responded, "No, no

objection.” Through counsel, the Smiths affirmatively represented

to the trial court that they had no objection to the special-verdict

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form that they now challenge on appeal. Accordingly, we conclude

that any error in the special-verdict form was invited and do not

address this argument further.

III. Nominal Damages

¶26 The Smiths assert that even if the jury verdict awarding no

actual damages was appropriate, the trial court erred in denying

the Smiths' request for nominal damages. "Nominal damages are

recoverable upon a breach of contract if no actual or substantial

damages resulted from the breach or if the amount of damages has

not been proven.” Turtle Mgmt., Inc. v. Haggis Mgmt., Inc., 645 P.2d

667, 670 (Utah 1982). The Smiths argue that under Holmes

Development, LLC v. Cook, if no damages accrue from the breach of

a real property covenant the trial court must award nominal

damages. See 2002 UT 38, ¶ 40, 48 P.3d 895. The Smiths therefore

ask us to "remand to the trial court for a determination of nominal

damages.” However, our supreme court in Holmes concluded that

where a breach of covenant is cured, no actual damages result from

the breach. Id. Accordingly, the court held that "any recovery for

breach of these covenants is limited to nominal damages,” not that

an award of nominal damages is required in such a case. See id.

(emphasis added). Indeed, even though the plaintiff in Holmes had

proved just such a "technical breach,” id., the court declined to

remand for entry of an award of nominal damages to the plaintiff

and instead affirmed the trial court's grant of summary judgment

to the defendant, explaining that "we generally do not remand if

the damages are only nominal,” id. ¶ 43.

¶27 Here, the jury found that the Simases' house violated the

CC&Rs but found the violations immaterial. The jury therefore did

not find that any damage resulted from the Simases' technical

breach of the CC&Rs. And while nominal damages may have been

appropriately ordered below, we generally will not order a remand

"if the damages are only nominal.” Id. The Smiths have not

addressed this general rule or demonstrated that we should depart

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from it. Accordingly, we affirm the trial court's denial of an award

of nominal damages.

IV. Attorney Fees

¶28 Last, the Smiths argue that the trial court erred in not

naming them as the prevailing party after trial and in not awarding

them attorney fees under an attorney-fee provision of the CC&Rs.

The Smiths also request their attorney fees on appeal, arguing that

because the trial court should have awarded attorney fees below,

we may award attorney fees related to the appeal. On cross-appeal,

the Simases contend that they were the prevailing party below, that

the trial court erred in failing to award them attorney fees, and that

this court "should remand for a determination of . . . attorney fees

and costs both below and on appeal.”

¶29 "Whether or not a party is the prevailing party is a question

for the trial court, depending in large measure on the context of

each case.” Carlson Distrib. Co. v. Salt Lake Brewing Co., 2004 UT App

227, ¶ 37, 95 P.3d 1171. Relevant factors for the trial court's

consideration include, but are not limited to

(1) contractual language, (2) the number of claims,

counterclaims, cross-claims, etc., brought by the

parties, (3) the importance of the claims relative to

each other and their significance in the context of the

lawsuit considered as a whole, and (4) the dollar

amounts attached to and awarded in connection with

the various claims.

R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 25, 40 P.3d 1119. Although

there is usually a clear prevailing party, the above considerations

"will permit a case-by-case evaluation by the trial court, and

flexibility to handle circumstances where both, or neither, parties

may be considered to have prevailed.” Id.

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¶30 Section 12.2(a) of the CC&Rs (the Attorney Fee Provision)

states, "In any action brought to enforce these covenants, the

prevailing party shall be entitled to recover as part of its judgment

all of the reasonable costs of enforcement, including attorneys fees

and costs of court.” The trial court determined that neither party

was the prevailing party and denied both parties' requests for

attorney fees under the Attorney Fee Provision. Specifically, the

trial court found,

The [Smiths] prevailed on the issue of breach of

contract, since the jury determined that the

Defendants violated the [CC&Rs]. However, [the

Simases] prevailed on the issue of materiality and

damages. The court determines that neither party is

the prevailing party under [the Attorney Fee

Provision]. Thus, the Court denies any award of

attorney fees under [the Attorney Fee Provision], and

denies any award of costs under Utah R. Civ. P.

54(d).

In the trial court's final judgment and order issued on November

17, 2010, the court reiterated that neither party was the prevailing

party and that no attorney fees or costs would be awarded under

the Attorney Fee Provision. However, the trial court did award the

Smiths their attorney fees and costs related to a pretrial discovery

dispute in the amount of $4,132.75.

¶31 On this record, it was within the trial court's discretion to

determine that neither party prevailed and to consequently deny

an award of attorney fees to both parties. See id. Given the

circumstances present in this case, a determination of who is the

"prevailing party” can be difficult. In a limited victory, the Smiths

prevailed on the issue of breach of contract when the jury

concluded that the Simases' house violated three provisions of the

CC&Rs. The Simases, on the other hand, prevailed in the sense that

the jury awarded no damages to the Smiths and the trial court

denied the injunctive relief the Smiths sought. It was not

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unreasonable for the trial court to conclude that neither party had

truly prevailed. Accordingly, we conclude that the trial court acted

within its discretion in determining that neither party prevailed

below and that, as a result, neither party was entitled to an award

of attorney fees and costs.

¶32 Additionally, when an appellee successfully defends a

judgment on appeal, an "award of fees on appeal requires both a

fee award below and success in the appellate court.” Holladay

Towne Ctr., LLC v. Brown Family Holdings, LC, 2008 UT App 420,

¶ 25, 198 P.3d 990, aff'd, 2011 UT 9, 248 P.3d 452. Because the

Simases were not awarded attorney fees below and the Smiths

have not prevailed on appeal, we deny both parties' requests for an

award of attorney fees incurred on appeal.

¶33 The trial court acted within its discretion in denying the

Smiths’ request for injunctive relief ordering abatement of the

violations of the CC&Rs. The Smiths invited any error in the

special-verdict form. We decline to remand this case for

consideration of only nominal damages. The trial court’s

determination that neither party prevailed below was within its

discretion, and its resulting denial of attorney fees and costs was

therefore proper.



¶34 Affirmed.